Machado v. Allen

BRAZIL, J. pro tem.* The executors of the will of Edith Louise Jarman, deceased, filed a petition in the probate court, pursuant to the provisions of section 588 of the Probate Code, for instructions concerning the payment for legal services by appellant Machado and for investigative services by appellant Ward. The appellants had performed services for the estate in connection with a protracted law suit tried in the superior court, wherein Eleanor North Jarman successfully maintained that about all of the assets of the estate were actually held by the executors in trust for her.

Upon completion of a long and involved hearing, the probate court made the following order:

“Thereupon, the matter being presented and submitted, the court makes its order as follows: 1 It is evident that every[436]one isn’t going to get what they want in the way of fees and compensation in this case. In the first place, I think that Mr. Machado is entitled to a fee and that it should be paid out of the estate, which, of course, means that Mr. Burnett’s client is the one that is going to pay it, I suppose.

“The fee that the court is going to allow will include all compensation that is payable to Mr. Ward. In other words, Mr. Machado will be, it will be his burden to settle with Mr. Ward. I am not unmindful of the letters that are in the evidence respecting Mr. Ward’s employment and the statements in them that, if the litigation is unsuccessful, his fee may have to be a little bit less than if it were successful.

“The court is not going to decide at this time the amount of fees that are due Mr. Griswolt and Mr. Braught but will leave that to a later time.

“Also, in as much as Mr. Burnett’s clients are the ones that have to pay the fee, it is only equitable, just and fair that all interference with her rights in connection with this Merced property should be dispensed with. In other words, that ease should be dismissed insofar as it relates to Mrs. Jarman or her vendee or anyone connected with her; and that will be a condition attached to the allowance of the fee.

“Another condition attached to the allowance of the fee will be the dismissal of the appeal which can easily be accomplished by cooperation between the executors and counsel.

“And a further condition attached to the allowance of the fee will be the dismissal with prejudice of the case that is brought by Ward, because that interferes with the executors in the discharge of their ordinary duties and in the closing of the estate.